J-A24018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOANNA CHARLES

Appellant No. 1344 WDA 2016

Appeal from the Judgment of Sentence Dated June 20, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003957-2015

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2017

Appellant, Joanna Charles, appeals from the judgment of sentence 

imposed after a jury convicted her of theft by failure to make a required 

distribution of funds received, and misapplication of entrusted property.1 We 

affirm.

The charges against Appellant arose from her role as the administrator 

of her father’s estate. The Commonwealth alleged that during a sevenmonth period from August 2011 to January 2012, Appellant misappropriated 

approximately $22,000. A jury trial commenced on February 29, 2016, and 

on March 1, 2016, the jury returned its guilty verdicts.

The trial court summarized the facts as follows:

____________________________________________

1 18 Pa.C.S. §§ 3927(a) and 4113(a).
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In mid-August of 2011, James Charles, Sr. passed away 

intestate. He was survived by three adult children: Appellant, 

James Charles, Jr., and Jamesina Charles. Charles, Jr. retained 

the services of Attorney Sally Frick to handle his father’s estate. 

Appellant’s siblings signed a renunciation, and Appellant was 

appointed as administrator of the estate.

The estate included a home in Penn Hills, a large amount 

of cash, and several vehicles. At the initial meeting between 

Attorney Frick, Appellant, and Jamesina at the decedent’s home, 

Jamesina and Appellant recovered $8000 cash. These funds 

were turned over to Attorney Frick to be placed in an estate 

account. Additionally, $14,000 cash was found on the 

decedent’s person at the time of his death, and the coroner’s 

office turned over the cash to Jamesina. Jamesina used $4000 

from these funds to pay for funeral expenses. In September 

2011, Jamesina sent the remaining funds ($10,000) to 

Appellant, with the understanding that the funds would be made 

part of her father’s estate account, which was maintained by 

Attorney Frick. However, Appellant retained possession of those 

funds.

On September 28, 2011, Appellant visited Attorney Frick at 

her office, and informed her that her services were no longer 

needed. Attorney Frick relinquished the $8000 cash and estate 

documents to Appellant. Appellant never hired another attorney. 

Consequently, Attorney Frick remained the counsel of record, 

and though she tried to contact Appellant to ensure she hired a 

new attorney, she was unable to reach Appellant.

As part of her duties as administrator of her father’s 

estate, Appellant was provided with funds to be used to prepare 

the home for sale, and to be distributed amongst family 

members according to eventual court order. These funds 

included the $8000 cash from Attorney Frick, and the $10,000 

from Jamesina. Additionally, Appellant withdrew $4600 from her 

father’s checking account, and deposited it into a new estate 

account with other smaller deposits, on which she was the only 

signatory. Appellant paid approximately $2,500 of those funds 

to a family friend, Colin Wesley Carr, to fix certain aspects of the 

decedent’s home. Additionally, she paid for Carr’s airfare from 

New York City, food while he stayed in the decedent’s home, and 

all supplies for the home repairs. She also made some utility 
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payments for the house, as detailed in the Commonwealth 

Exhibit 10.

However, the remaining funds were not used in the 

administration of the estate, and were not saved for later 

distribution to the estate. Instead, Appellant mixed the estate 

funds with her personal account and used the funds for personal 

matters. As such, no funds remain for the administration of the 

estate or for distribution under any court order.

Trial Ct. Op., 2/21/17, at 4-6 (citations to notes of testimony omitted).

At sentencing, Appellant presented Colin Carr, who, with respect to 

restitution, testified to making repairs at the decedent’s home and being 

paid for his services and expenses. See N.T., 4/25/16, 5-16. On June 20, 

2016, the trial court sentenced Appellant to five years’ probation and 

ordered her to pay restitution of $17,910 to the estate.2 Appellant filed a 

timely post-sentence motion, which the trial court denied on August 26, 

2016. On September 6, 2016, Appellant filed this appeal.

Appellant raises four issues for review:

1. Whether the Commonwealth produced sufficient evidence to 

sustain a guilty verdict for Theft by Failure to Make Required 

Distribution of Funds Received?

2. Whether the Commonwealth produced sufficient evidence to 

sustain a guilty verdict for Misapplication of Entrusted 

Property?

3. Whether the verdict is against the weight of the evidence 

presented?

____________________________________________

2 The sentence was imposed at Count 1 (theft by failure to make required 

distribution of funds), with no further penalty at Count 2 (misapplication of 

entrusted property). 
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4. Whether the trial court erred in ordering restitution where 

questions as to the composition and proper distribution of the 

estate were not first resolved in Orphan’s court?

Appellant’s Brief at 3.

Sufficiency and Weight of the Evidence

In reviewing Appellant’s first three claims challenging the sufficiency 

and weight of the evidence, we are mindful of the following:

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support 

the verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Where the evidence offered to 

support the verdict is in contradiction to the physical facts, in 

contravention to human experience and the laws of nature, then 

the evidence is insufficient as a matter of law. When reviewing a 

sufficiency claim the court is required to view the evidence in the 

light most favorable to the verdict winner giving the prosecution 

the benefit of all reasonable inferences to be drawn from the 

evidence.

A motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence concedes that there is 

sufficient evidence to sustain the verdict. Thus, the trial court is 

under no obligation to view the evidence in the light most 

favorable to the verdict winner. An allegation that the verdict is 

against the weight of the evidence is addressed to the discretion 

of the trial court. A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. A trial judge 

must do more than reassess the credibility of the witnesses and 

allege that he would not have assented to the verdict if he were 

a juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of 

greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.
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Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations, 

quotation marks, and footnote omitted).

In her first two issues, Appellant argues that the evidence was 

insufficient to support her two convictions. At their essence, Appellant’s 

arguments are that she lacked the intent necessary to support the 

convictions. In part, she blames Attorney Frick, who she dismissed, for 

failing to provide her with proper guidance. With regard to theft by failure to 

make a required distribution of funds received, Appellant additionally asserts 

that the evidence was insufficient because she never failed to “make a 

required payment or disposition.” Appellant’s Brief at 13, 17-18.

The statute defining theft by failure to make a required distribution of 

funds received provides:

A person who obtains property upon agreement, or subject to a 

known legal obligation, to make specified payments or other 

disposition, whether from such property or its proceeds or from 

his own property to be reserved in equivalent amount, is guilty 

of theft if he intentionally deals with the property obtained as 

his own and fails to make the required payment or disposition. 

The foregoing applies notwithstanding that it may be impossible 

to identify particular property as belonging to the victim at the 

time of the failure of the actor to make the required payment or 

disposition.

18 Pa.C.S. § 3927(a) (emphasis added). The statute defining misapplication 

of entrusted property states:

A person commits an offense if he applies or disposes of 

property that has been entrusted to him as a fiduciary, or 

property of the government or of a financial institution, in a 

manner which he knows is unlawful and involves substantial 
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risk of loss or detriment to the owner of the property or to a 

person for whose benefit the property was entrusted.

18 Pa.C.S. § 4113 (emphasis added).

Viewing the record in a light most favorable to the Commonwealth as 

the verdict-winner, we find no merit to Appellant’s sufficiency claims, as the 

evidence was sufficient for the jury to infer Appellant’s intent relative to both 

crimes. Appellant admitted that she agreed to be the administrator of her 

father’s estate and took sole possession of approximately $22,600, 

comprised of her father’s cash and bank account. N.T., 2/29/16, at 98-99. 

She testified that she made a few checks payable to herself, and spent 

money from the estate, including “about $3,000” on furniture for her 

mother, and other expenditures for “maybe a couple other family members.” 

N.T., 2/29/16, at 96, 100. She stated that the funds were “kind of all mixed 

in together.” Id. She also testified that all of the cash and funds in the 

bank account that had been in her possession were “all gone,” stating that 

“[a]ll of it was used.” Id. at 102. This evidence was sufficient to support 

Appellant’s convictions under both statutes. See Commonwealth v. 

Green, 162 A.3d 509, 523 (Pa. Super. 2017) (en banc) (finding evidence 

sufficient when viewing the evidence in a light most favorable to the verdict 

winner, and reiterating that we may not weigh the evidence and substitute 

our judgment for the fact-finder who is free to believe all, part, or none of 

the evidence).
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We reject Appellant’s contention that she never failed to make a 

distribution as disingenuous. By dissipating the funds, Appellant made it 

impossible for there to be a distribution of estate funds to her father’s heirs. 

As the trial court stated:

Regardless of Attorney Frick’s actions or the fact that a court 

order was not yet prepared for disbursement [of the estate funds 

to the heirs], Appellant had possession of those funds and was 

aware that these funds were to be used solely for the 

administration of her father’s estate. Nonetheless, Appellant 

used the funds for her own personal purposes, permanently 

depriving her father’s estate of those funds.

Trial Ct. Op., 2/21/17, at 9.

The test for determining the sufficiency of the evidence is whether, 

viewing the evidence in a light most favorable to the Commonwealth, and 

drawing all inferences favorable to the Commonwealth, the jury could 

reasonably have determined all elements of the crime to have been 

established beyond a reasonable doubt. Commonwealth v. Aulisio, 522 

A.2d 1075 (Pa. 1987). On the record in this case, the jury could reasonably 

have found that Appellant obtained the estate funds upon agreement and 

subject to a known legal obligation to make disposition for the estate, but 

intentionally dealt with the funds as her own and failed to make the required 

disposition of the estate by depleting it — conduct sufficient to prove theft 

by failure to make a required distribution of funds received. The jury also 

reasonably could have found that Appellant disposed of funds that were 

entrusted to her as estate administrator in a manner which she knew was 
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unlawful and involved substantial risk of loss or detriment to the estate or its 

beneficiaries — conduct sufficient to prove misapplication of entrusted 

property.

In her third issue, Appellant argues that her convictions were against 

the weight of the evidence.3 Without citing any meaningful legal authority, 

Appellant repeats her sufficiency argument and states that “the jury’s verdict 

was against the weight of the evidence as both of the counts at issue 

requires [sic] intent on the part of the defendant as well as an actual 

unlawful taking of property.” Appellant’s Brief at 28. The Commonwealth 

contends that Appellant has waived her weight claim because it is 

insufficiently argued. Without reaching the question of waiver, we conclude 

that Appellant’s weight claim fails for the reasons stated by the trial court in 

its opinion. See Trial Ct. Op., 2/21/17, at 8-10 (recounting applicable legal 

authority and relevant evidence from Appellant’s trial, and concluding that 

“[t]he evidence presented during trial established Appellant’s guilt beyond a 

reasonable doubt, and the Trial Court properly denied the motion for a new 

trial as the verdict was not against the weight of the evidence”).

____________________________________________

3 As required by Pa.R.Crim.P. 607, Appellant preserved this issue by raising 

it with the trial court in her post-sentence motion.
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Restitution

In her fourth issue, Appellant argues that the trial court erred by 

awarding restitution when “the estate was not properly determined in a 

proceeding in Orphan’s Court.” Appellant’s Brief at 28. She states:

[T]he trial court could not properly determine restitution where 

the proper distribution and identities of the person to benefit 

from the estate were not correctly determined in Orphans’ court. 

It is Orphan’s court’s clear function to resolve such questions. 

Id. at 30. Appellant additionally contends that by filing charges against her, 

the Commonwealth “encourages individuals to file criminal charges in estate 

matters to avoid the fees and complications of Orphan’s court.” Id. at 15.

The Commonwealth responds by emphasizing that Appellant was 

convicted of theft, and that the Crimes Code, 18 Pa.C.S. § 1106, mandates 

restitution where “property has been stolen or converted.” Commonwealth’s 

Brief at 10-11, 26-28. Section 1106 provides, in relevant part:

(a) General rule.—Upon conviction for any crime wherein 

property has been stolen, converted or otherwise 

unlawfully obtained, or its value substantially decreased as 

a direct result of the crime, or wherein the victim suffered 

personal injury directly resulting from the crime, the 

offender shall be sentenced to make restitution in addition 

to the punishment prescribed therefor.

(b) Condition of probation or parole.—Whenever restitution 

has been ordered pursuant to subsection (a) and the 

offender has been placed on probation or parole, his 

compliance with such order may be made a condition of 

such probation or parole.

The Commonwealth argues that “Appellant fails to recognize that this issue 

involves the sentence of restitution imposed for her criminal conviction for 
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theft . . . and the orphans’ court division does not have jurisdiction over 

criminal matters.” Commonwealth’s Brief at 27. We agree. 

This Court recently explained:

In the context of criminal proceedings, an order of restitution is 

not simply an award of damages, but, rather, a sentence. An 

appeal from an order of restitution based upon a claim that a 

restitution order is unsupported by the record challenges the 

legality, rather than the discretionary aspects, of sentencing. The 

determination as to whether the trial court imposed an illegal 

sentence is a question of law; our standard of review in cases 

dealing with questions of law is plenary. . . . 

Restitution is a creature of statute and, without express 

legislative direction, a court is powerless to direct a defendant to 

make restitution as part of his sentence. Where that statutory 

authority exists, however, the imposition of restitution is vested 

within the sound discretion of the sentencing judge. 

. . . In the context of a criminal case, restitution may be imposed 

either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a 

condition of probation, 42 Pa.C.S. § 9754. When imposed as a 

sentence, the injury to property or person for which restitution is 

ordered must directly result from the crime. However, when 

restitution is ordered as a condition of probation, the sentencing 

court is accorded the latitude to fashion probationary conditions 

designed to rehabilitate the defendant and provide some 

measure of redress to the victim. 

Commonwealth v. Holmes, 155 A.3d 69, 78-79 (Pa. Super. 2017) (quoted 

and internal citations omitted). Consistent with Holmes, we discern no 

abuse of discretion by the trial court in making restitution part of Appellant’s 

sentence. As the Commonwealth points out, Appellant errs in treating the 

restitution as an “award” made to the beneficiaries of the estate. Although 

the restitution is to be paid to the estate, it is neither an award of damages 

nor a distribution of estate assets; it is a sentence imposed on Appellant for 
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her criminal conduct. Because an Orphans’ Court has no role in imposition 

or enforcement of such a sentence, there was no error in imposing the 

sentence without the Orphans’ Court’s involvement.

The restitution amount is supported by the record. The 

Commonwealth requested restitution of $21,910, consisting of the $10,000 

found on the decedent’s person (net after $4,000 was paid for funeral 

expenses), $8,000 cash recovered from the decedent’s home, and $3,910 

taken from a bank account. See N.T., 6/20/16, at 6. Appellant testified 

that she paid “$5,000 or more” for Mr. Carr to complete repairs to the home. 

N.T., 2/29/16, at 89. Mr. Carr testified that Appellant paid him $2,500 cash 

for various repairs that included plumbing, drywall, and yard work. N.T., 

4/25/16, at 8. He stated that he “did a lot of work” that “took . . . about 

two months to do”; that he “didn’t even pay for any food, she took care of 

everything,” including tools and materials; and that because he was living in 

New York City at the time, Appellant twice paid for his airfare. Id. at 4, 8-

14. The trial court credited this testimony and therefore reduced the 

restitution amount to $17,910. Trial Ct. Op., 2/21/17, at 12. The trial 

record supports the court’s calculations. Accordingly, we find no error in the 

trial court’s order of restitution to the decedent’s estate. 

For all of the reasons stated above, we affirm Appellant’s judgment of 

sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2017